CAT/C/73/D/1037/2020

GE.22-11847(E)

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1037/2020*, **

Communication submitted by:

A.S. (represented by counsel, Marjaana Laine)

Alleged victims:

The complainant

State party:

Finland

Date of complaint:

4 November 2020 (initial submission)

Document references:

Decision taken pursuant to rules 114 and 115 of

the Committee’s rules of procedure, transmitted

to the State party on 9 November 2020 (not

issued in document form)

Date of decision

22 April 2022

Subject matter:

Deportation from Finland to the Russian

Federation

Procedural issues:

Exhaustion of domestic remedies; manifestly ill-

founded;

Substantive issue:

Risk of torture or other cruel, inhuman or

degrading treatment or punishment

Article of the Convention:

Article 3

1.1

The complainant is A.S., who is a national of the Russian Federation, born in 1993.

He claims to be victim of a violation by the State party of his rights under article 3 of the

Convention. The complainant is represented by counsel.

1.2

On 9 November 2020, the Committee, acting through its Rapporteur on new

complaints and interim measures, granted the complainant’s request for interim measures and

requested the State party not to remove him to the Russian Federation while his complaint

was under consideration by the Committee. The State party informed the Committee that it

would follow the Committee’s request.

1.3

On 29 September 2021, pursuant to rule 115 (3) of the Committee’s rules of

procedure, the Committee, acting through its Special Rapporteur on new complaints and

interim measures, granted the State party’s request for the admissibility of the communication

to be examined separately from the merits.

* Adopted by the Committee at its seventy-third session (19 April–13 May 2022).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Claude Heller, Erdogan Işcan, Liu Huawen, Maeda Naoko, Ilvija Pūce, Ana Racu,

Abderrazak Rouwane, Sébastien Touzé and Bakhtiyar Tuzmukhamedov.

United Nations

CAT/C/73/D/1037/2020

General Assembly

Distr.: General

28 July 2022

Original: English

CAT/C/73/D/1037/2020

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Facts as presented by the complainant

2.1

The complainant submits that he was born in the Republic of Ingushetia, but lived his

whole life in the city of Sernovodsk, Chechen Republic, Russian Federation. He is Chechen

by ethnicity and Muslim by religion. He claims that he has been a victim of several episodes

of torture in the past, specifically in 2016.

2.2

The complainant submits that he does not share the religious beliefs of the current

government of his home country, although he has never been politically active, and that he

has never participated in any rebel activities. His close relatives, however, have been actively

involved in rebel activities in the Chechen Republic. Three of his uncles were arrested in

2004. One of them was wounded during the arrest and was later killed in hospital. Another

uncle was sentenced to three years of imprisonment for his rebel activities. His uncle, A.R.B.,

managed to escape to Finland and was granted asylum there. The complainant clarifies that

A.R.B. was a leader of an insurgent group during the war. In 2011, the Russian Federation

submitted an extradition request to the authorities in Finland. According to the complainant,

this request was based on fabricated terrorism-related charges.

2.3

As for himself, in August 2016 the complainant was arrested by the Chechen

authorities for the first time. At that time, he was in a mosque with his friends during Friday

prayers. The complainant and two of his friends, who were also present at the mosque, were

taken to a police station. Police officers started interrogating them, threatening them with

“serious consequences”. The complainant was then beaten for about 30–40 minutes, and

officers also used an electric stun gun to torture him. The complainant and his two friends

were tortured in different cells, but at night they were brought into one room. In the morning,

they were separated and the torture continued. He was taken to hospital to be checked for any

signs of injury that could have been taken as evidence of torture. The complainant was

released on the third day and was told to report to the police regularly.

2.4

Since that first arrest, the complainant has been brought into the police station several

times. He has been forced to watch video lectures on the government’s official ideology and

was beaten on four or five occasions. Furthermore, on 30 November 2016, his house was

raided by the Chechen authorities and he was taken to an unknown location and put in an

underground cell. He was tortured by being hung with his hands tied behind his back. He was

prevented from sleeping and officers regularly threw cold water over him. They also used

electric shocks and threatened to kill him. During the torture, the authorities also mentioned

his three uncles.

2.5

After 30 November 2016, the complainant never slept in his own house again. He

learned that one of his acquaintances had also been arrested and then released. Together with

that person, he travelled by car to St. Petersburg where they both obtained visas for Finland

and travelled there by train on 27 January 2017. After arriving in Finland, the complainant

received information from his mother that four or five young men, who like him had an

obligation to report to the authorities, had been killed in the city of Grozny, Chechen

Republic. He also received information that the authorities were looking for him and that

they had told his mother that he should return voluntarily, otherwise they would issue a

warrant for his arrest. In May 2018, the authorities sent a summons request for the

complainant to appear at the police station. A copy of this summons was submitted to the

Finnish asylum authorities. In March or April 2020, the authorities again came to his home.

They told his mother that they knew that the complainant was in Finland living with his uncle

A.R.B. The complainant is now concerned that the blood feud related to his uncle is now

extended to him.

2.6

The complainant submits that the asylum authorities accepted as a fact that the

complainant was detained by accident in August 2018 and that because of that detention, he

had to report regularly. However, they found his description of arrests and abuse in the

autumn of 2016 as “short and general” in description. The immigration authorities considered

that the threat from the Chechen authorities usually came only against the closest family

members of rebel activists, whereas more distant relatives rarely drew attention.

2.7

The asylum authorities considered, for example, that the complainant’s father had not

had any difficulties with the authorities. They therefore did not accept the fact that the

complainant would be profiled because of his uncles. Based on all the information provided

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by the complainant and on the information on the country of origin, the Finish authorities did

not consider that the complainant had a reasonable fear of being persecuted in his home

country, as would be required under article 87 (1) of the Aliens Act. Furthermore, they did

not accept as a fact that the complainant was a person wanted by the Russian authorities. The

complainant had not broken any laws or been charged with any crimes and he had left Russia

legally using a lawfully issued passport.

2.8

According to the immigration authorities, the complainant could easily live and work

in Moscow. He is a highly educated healthy person and Chechens constitute a well-connected

minority group in Moscow. The initial decision was appealed, but the appeal was rejected by

the Helsinki Administrative Court on 3 January 2020. The Supreme Court of Finland refused

to issue a leave to appeal on 5 June 2020. The complainant attempted to file another asylum

appeal on 10 June 2020, which was also rejected on 21 September 2020 without a hearing,

since the authorities considered that all issues brought forward by the new asylum claim were

already “legally settled”. The complainant therefore submits that domestic remedies have

been exhausted.

2.9

The complaint submits a statement from a psychiatrist dated 27 August 2020,

according to which, he has been diagnosed with post-traumatic stress disorder, adjustment

disorder and prolonged depression, all of which require medical and therapeutic care.

Complaint

3.

The complaint claims that his removal to the Russian Federation would constitute a

violation of his rights under article 3 of the Convention.

State party’s observations on admissibility

4.1

On 9 March 2021, the State party submitted its observations on the admissibility of

the complaint. The State party confirms that the complainant applied for asylum in Finland

on 2 February 2017. On 17 August 2018, the complainant’s request for asylum was rejected

by the Finnish Immigration Service, and he was ordered to be removed. On 3 January 2020,

the Helsinki Administrative Court rejected the complainant’s appeal. The Supreme

Administrative Court, by decision of 5 June 2020, denied the complainant’s leave to appeal.

4.2

On 10 June 2020, the complainant started a second set of proceedings by filing another

asylum application, which was rejected on 21 September 2020. On 7 October 2020, the

Helsinki Administrative Court rejected the complainant’s request to prohibit the enforcement

of his removal. Later on, on 23 November 2020, the court issued the new interlocutory order,

which prohibited the complainant’s removal to Russia, pending a new order being issued.

Currently, there is no final decision on the complainant’s second asylum application.

4.3

The State party notes that according to article 22 (5) (b) of the Convention, the

Committee shall not consider any communication from an individual unless it has ascertained

that the individual has exhausted all available domestic remedies. The complainant

completed a first set of proceedings but started a new set of proceedings, which are currently

pending. The Committee’s jurisprudence, including the case of A.K. v. Switzerland, supports

the State party’s position. 1 In that case, the Committee found the communication

inadmissible, due to the fact that the Asylum Appeals Board had not yet taken a decision on

the complainant’s appeal. Similarly, in the case of L.M.V.R.G. and M.A.B.C. v. Sweden, the

Committee found the complaint inadmissible, since the complainant failed to submit an

appeal to the Aliens Appeal Board.2

4.4

The European Court of Human Rights has taken a similar approach, for example in

L.T. v. Belgium, where the applicant’s second asylum request was pending and that set of

proceedings had a suspensive effect on removal. In the present case as well, the complainant’s

second set of proceedings has a suspensive effect against his return to his home country.

4.5

The State party submits that were the Committee to decide on the complainant’s case,

despite pending proceedings, that would preclude the domestic authorities from reviewing

1 See CAT/C/36/D/248/2004/Rev.1.

2 See CAT/C/19/D/64/1997.

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the alleged new grounds for granting the complainant’s request for asylum. The

complainant’s appeal to the Administrative Court is not a mere formality, and does not

constitute an extraordinary remedy. Following the future Administrative Court decision, the

complainant has a possibility to request leave to appeal to the Supreme Administrative Court,

if he wishes to. Consequently, it is evident that the complainant has not, for the time being,

exhausted the requirements of article 22 (5) (b) and his complaint should be declared

inadmissible. Should the Committee find the complaint admissible, the State party requests

it to suspend the present communication until final domestic decisions are issued.

4.6

The complaint is also manifestly ill-founded and not sufficiently substantiated. It is

the Committee’s well-established practice that the extent of article 3 of the Convention has

been to determine whether “substantial grounds” exist that the risk of torture is “foreseeable,

personal, present and real”. The pattern of gross, flagrant or mass violations of human rights

in a country does not, as such, constitute a sufficient reason for determining that a particular

person would be in danger of being subjected to torture, if returned to his home country.

Additional grounds must be adduced to show that the individual would personally be at risk.

The complainant’s applications were examined under the Aliens Act 301/2004. The

provisions of that law reflect the principles of article 3 of the Convention and both

applications were subject to appeal.

4.7

The Committee’s approach has been, as reflected in the case of Attia v. Sweden, that

risk of torture due to family ties is generally insufficient to put forward claims under article

3 of the Convention.3 In the present case, the Finnish Immigration Service considered that

the alleged violations of the complainant’s rights in Chechnya were the result of arbitrary

action by the authorities. The complainant has not taken part in any action that would make

him suspected of offences or affiliation with an extremist movement. The Finnish

Immigration Service therefore did not find a “causal connection” between the alleged

persecution and the reason for that persecution. Taking into account the complainant’s

background, the Immigration Service did not find reasonable grounds to believe that if he

lived in other parts of the Russian Federation, he would risk suffering persecution or serious

harm.

4.8

Although the complainant refers to the Committee’s jurisprudence in its general

comment No. 4 (2017) regarding internal flight alternatives and argues that this alternative

cannot be considered as “reliable or effective” in his case, the case law of the Committee,

relies on believing that the Chechen or Russian authorities would subject the complainant to

persecution and return him to Chechnya, even if he were to live in a different part of the

country. The State party considers that it has no reason to believe this.

4.9

The State party therefore believes that the complainant both failed to exhaust domestic

remedies and that his complaint does not establish a prima facie case for the purposes of

admissibility, and therefore should be declared inadmissible pursuant to article 22 (3) of the

Convention, and rule 113 (b) of the Committee’s rules of procedure. At any rate, the present

communication does not reveal any breaches of article 3 of the Convention.

Complainant’s comments on the State party’s observations

5.1

On 16 August 2021, the complainant submitted his comments on the State party’s

observations. The complainant claimed that the State party had failed to put forward any real

reasons to find the communication inadmissible. The authorities failed to consider the

individual situation of the complainant and the relevant information on the country of origin.

The State party has chosen to ignore, for example, that the Helsinki Administrative Court in

its decision of 3 January 2020 made a finding that the complainant had a well-founded fear

of persecution in Chechnya.

5.2

The Helsinki Administrative Court rejected the complainant’s appeal on 5 March

2021. The court stated that on 3 January 2020, there was already a finding that the

complainant was a victim of torture and looked into his health conditions. The court,

however, stated that the complainant had not presented any new information about his profile

and why the authorities would be interested in him. If there was no interest from the

3 See CAT/C/31/D/199/2002.

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authorities, then there would be a reason to consider the internal flight alternative, by living

in another part of the Russian Federation.

5.3

The court further stated that the second application did not contain any new

information that would increase the applicant’s chances of qualifying for international

protection. So the court considered the second application as a subsequent application, which

did not fulfil the requirements of the Aliens Act, section 103, subsection 2, to consider the

application admissible. The court stated at the end of the decision that for clarity purposes,

even if the application had been rejected, it did not affect the interim measure taken by the

Committee. The complainant filed for leave to appeal on 19 March 2021, which was granted

by the Supreme Administrative Court on 24 March 2021. The case is currently pending with

the Supreme Administrative Court.

5.4

The State party asserts that the complainant has not exhausted all domestic remedies,

even though he himself initiated the second set of proceedings. It has to be noted that when

the complainant approached the Committee, an order to return him to the Russian Federation

became enforceable, all domestic remedies were exhausted and the police had started

enforcement.4The appeal to the Administrative Court does not prevent the enforcement of an

order to return, unless otherwise ordered by the court itself. The complainant filed an appeal

to the Helsinki Administrative Court, which rejected his claims on 7 October 2020 and the

order to return became enforceable at that time. After the complainant filed his

communication with the Committee, the police agreed to suspend removal. On 23 November

2020, the Helsinki Administrative Court issued a new interlocutory decision and granted

interim measures.

5.5

Regarding the establishment of a prima facie case against the State party, the

complainant submits that for the purposes of admissibility, the claims should fulfil basic level

of substantiation. The complainant has sufficiently detailed the facts and the basis for his

claims under article 3 of the Convention. In its decision of 3 January 2020, the Administrative

Court established the causal link between persecution and the reason for persecution. The

information on country of origin supports the fact that the Chechen authorities are keen on

searching for persons of interest outside Chechnya. 5 A recent report by the Norwegian

Helsinki Committee states that a once-persecuted Chechen, even if he or she moves to

another part of the country, will need to register with the local authorities and this information

can be easily available to the Chechen authorities.6

5.6

The cases of the Committee to which the State party refers do not support the finding

of inadmissibility. In the case of Attia v. Sweden, the Committee stated that when the

complainant’s allegations of the risk of torture were based solely on her familial ties, that risk

was insufficient by itself to make a showing under article 3 of the Convention. The

complainant’s case, however, is based on the impossibility of the internal flight alternative

and that he was himself a traumatized victim of torture, as accepted by the Finnish authorities.

In the cases of A.K. v. Switzerland and M.K.M. v. Australia,7 the Committee raised questions

on the merits, not the admissibility. In the case of A.K. v. Switzerland, the State party

challenged the credibility of the complainant. In the present case, the State party authorities

have accepted that the complainant was detained and tortured.

5.7

The complainant submits therefore that his complaint should be considered admissible

and requests the Committee to examine his claims on the merits. The complainant accepts

the alternative action to suspend consideration of the communication until a final domestic

decision is issued and received. In addition, the complainant is respectfully requesting the

Committee not to lift interim measures.

4 The complainant provides no further details as to the specific steps that were allegedly taken by the

police.

5 The complainant refers to two reports by the European Asylum Support Office: Country of Origin

Information Report Russian Federation: The Situation for Chechens in Russia (August 2018); and

Country of Origin Information Report Russian Federation: State Actors of Protection (March 2017).

6 The complainant refers to “Lost in Russia: a critical assessment of Norway referring to Russia as a

safe third country and safe country of origin” (2019).

7 See CAT/C/60/D/681/2015.

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Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering a claim contained in a communication, the Committee must decide

whether it is admissible under article 22 of the Convention. The Committee has ascertained,

as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not

been and is not being examined under another procedure of international investigation or

settlement.

6.2

The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it

shall not consider any communication from an individual unless it has ascertained that the

individual has exhausted all available domestic remedies. This rule does not apply where it

has been established that the application of those remedies has been unreasonably prolonged

or is unlikely to bring effective relief.8

6.3

The Committee notes the State party’s argument that the complainant has not

exhausted domestic remedies because he filed his complaint to the Committee before the

Helsinki Administrative Court could issue its findings in a procedure that, according to the

State party, is not a mere formality, is not of extraordinary nature and could provide relief to

the complainant. The complainant notes that when he first submitted his complaint to the

Committee on 4 November 2020, there was an enforceable order to remove him to the

Russian Federation. This order was not carried out only due to the fact that the Committee

issued a request for interim measures not to remove the complainant and registered the

present complaint; on 23 November 2020, the Helsinki Administrative Court issued a new

interlocutory order prohibiting removal of the complainant to his home country.

6.4

The Committee notes that the complainant does not contest the fact that there is a set

of active domestic proceedings occurring in the Helsinki Administrative Court and Supreme

Administrative Court. In addition to this fact, the complainant would have had an opportunity

to file a leave to appeal to the Supreme Administrative Court, but he has not used this remedy.

The Committee also notes the uncontested fact that the order dated 23 November 2020 has a

suspensive effect and prevents the State party from removing the complainant to the Russian

Federation. The Committee further notes its jurisprudence, according to which mere doubt

about the effectiveness of domestic remedies does not absolve the complainant from the duty

to exhaust them, in particular when such remedies are reasonably available and have

suspensive effect.9 In the light of the information before it, the Committee considers that, in

the present case, the complainant has an available and effective remedy that is not exhausted.

The Committee thus concludes that the communication should be declared inadmissible

under article 22 (5) (b) of the Convention.

6.5

In the light of this finding, the Committee does not deem it necessary to examine any

other inadmissibility grounds.

7.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 22 (5) (b) of the

Convention;

(b)

That the present decision shall be transmitted to the State party and to the

complainants.

8 See, for example, E.Y. v. Canada (CAT/C/43/D/307/2006/Rev.1), para. 9.2. See also the Committee’s

general comment No. 4 (2017), para. 34.

9 See, for example, F.K.A. v. Canada (CAT/C/65/D/784/2016), para. 6.4, and Shodeinde v. Canada

(CAT/C/63/D/621/2014), para. 6.7.